Business Law and Intellectual Property

Mira and Jim

Business Law and Intellectual Property Long test  PLEASE TYPE YOUR ANSWERS.  MAKE SURE THAT YOU SPELL THINGS PROPERLY.  ALL ANSWERS MUST BE FULLY EXPLAINED. REMEMBER TO USE THE RUBRIC. Please remember the pledge and to use MLA formatting. (worth 10 pts.) Mira James and Jim Hinders attended the Multi-Media School for Green Arts as game art and design students.  Since they enjoyed working together they often arranged to take the game art based classes together. As a result they worked on a great deal of projects as a team. In 2004 they took a class to develop concept and storyboards for game ideas. As always they asked for and received permission to work as a team (so long as they each met all of the competencies for the class). For the final project Mira wrote the story and then Jim drew out a storyboard (based on Mira’s story) for the proposed game.  The main characters are Fuzzy Animal, Fred the Knight, Princess Pretty Shoes, Hun Shallow, He who must wear black and Guru Pointed Ears.  The names are based loosely on the attributes of STAR WARS characters.  The storyline bears some resemblance to “Return of the Jedi.”  Fred must save his sister (the Princess) and her husband Hun from He who must wear black.  Fred goes on the quest against the wishes of his teacher Guru Pointed Ears.  Then the story goes on as the three along with others save the universe from the bad guys like He who must wear black.  Of course the story is set in a land far, far away and in another time.  They both earned an “A” on the class project.  Each included this piece (story and storyboard) in their graduation portfolio during portfolio review of December 2004.  The credit on work was as follows: Story by Mira James and storyboard by Jim Hinders. After school each got a job in the game arts business and soon lost track of each other.  In January 2006, while in between game projects, Mira picked up this old school project.  She noted that their project actually included some great ideas.  Using her new found experience in the gaming industry she rewrote the story and began building a game based on this new version.  She named her story – “Sky Baron”.  In addition to the game she also created a graphic novel to act as a prequel to the storyline in the game. She completed the graphic novel in December 2006.  A prototype for the game was completed June 2007.  She entitled the graphic novel “Sky Baron’s Empire”.  The game was entitled “Sky Baron – The Lost Way of the Folk.”  She registered the three works (new version of story, game and graphic novel) with the US © Office in July 2007. In August of 2007 she began looking for a publisher and/or distributor for her works.  Her intent was to grant a license in the graphic novel and the game in exchange for an advance (means money given that will be deducted from her royalties earned later) to live on while she completed a second edition of the game.  After a several-month search, Book-It Publishers, Ltd. accepted her proposal.  Mira granted Book-It an exclusive license to distribute, reproduce and to make limited derivative versions.  The license to make derivative versions only allowed Book-It to make promotional materials (ads, short teasers, short stories, etc.) to sell the graphic novel and game.  In exchange for the license of those rights, Book-It gave her $35,000 and promised her 10% on the net amount of money earned from the sale of graphic novel one and the first edition of the game.  Book-It also advanced her $25,000 in exchange for the first rights of refusal to the rights in graphic novel number two and the second edition of the game.  Book-It was allowed a set number of promotional units (as in did not owe her any money on those units used for promotion) and they did not have to pay her the royalty rate until the advance ($25,000) was recovered.  Mira retained the electronic rights (rights to convert to electronic reader etc.) to all novels, all merchandising rights (lunch pails, costumes, bed sheets etc.); the right to publically perform the works as well as the remainder of the right to make derivatives.  Book-It additionally agreed to shop for a movie deal in exchange for a 5% finder’s fee.  Book-It and Mira signed the contract on February 25, 2008. Per the contract with Mira, Book-It had its own employees (staff writers) create an edited and abridged version (no illustrations) of the graphic novel.  The purpose of this version was to test market the story and
Business Law and Intellectual Property Long test  do some early promotion of the game and graphic novel.  To that end, Book-It gave Science Fiction Digest (SFD) a non-exclusive license to reproduce and distribute the Book-It edited version.  SFD is a magazine that releases a collection of the staff’s pick of their favorite short stories.  SFD included the edited version in their September 2008 edition of the magazine.  This edited version of the novel received very positive reviews from the Sci-Fi editors and the readers.  In other words, the audience was sold on the characters and wanted more. Therefore, Book-It released the first graphic novel and game in November 2008.  The novel hit the NY Times bestseller list and remained there for several months through 2009. In 2009, as a result of the popularity of the game and due to Book-It’s suggestion, Warner Bros. Pictures commissioned Mira to write a treatment (short story version of her graphic novel/game).  Based on that test, Warner Bros. agreed to produce the movie based on her novel, game and characters.  Eventually Warner Bros. and Mira entered into an agreement separate from the Book-It agreement.  She granted Warner Bros. the exclusive license to make a movie based on her stories and characters.  In exchange for those rights, she received credit as graphic novel and game author, an advance of $50,000 and 0.5% on the net profit of movie.  Warner Bros. used their staff writers and directors to produce the final scripts and the movie. The movie filming was completed June 2013 and is slated to be released May 2015. 1. While Mira was a student, she worked with Jim in the concept and storyboard class.  She wrote the story and he created the storyboard based on the story.  Please describe the authorship and ownership of those two items as well as list the rights that are granted to each author.  If you think more facts are needed then add them in as assumptions.  Explain why you added those facts.  Then describe who will be the author and owner of the edited version placed in the SF Digest magazine. Finally, who will be the author and owner of the movie?  Explain 20 pts. 2. Since she worked with Jim in her concept class does he have any authorship rights to any of those works that she wrote based on the new version of her story from that class?  If you think more facts are needed then add them as an assumption.  Explain your answer 20 pts. 3. Now assume that Jim creates a board game in 2008 (ala Dungeons and Dragons) based on those ideas from their class project.  Has he infringed on any of her copyrights in her graphic novel or game? Does your answer change if, using those ideas, he did not make this game until after her version is popular?  Explain your answer (be sure to define the term “idea” before you address this question.). 10 pts 4. If images from Star Trek 2 – The Wrath of Khan are placed in the background of a scene of her graphic novel, will Mira need Paramount Pictures’ permission to use those images in the graphic novel or the game (see here)?  What if she uses the Space Needle (see this © law link)?  Explain.  10 pts 5. When the “story and storyboard” was a school project, they were making fun of Star Wars since their professor was a Star Wars geek.  They used the actual Star Wars actors (Harrison Ford, Mark Hamil, Carrie Fisher etc.) as models for their characters in the storyboard.  Once Mira determined to make this a professional project she changed the storyline but continued to use the same character names: Fuzzy Animal, Fred the Knight, Princess Pretty Shoes, Hun Shallow, He that must wear black and Guru Pointed Ears.  However, since she knew better than to use the actual Star Wars actors as models for her characters, she completely changed the characters physical appearances and attributes.  Bottom line is that she used a photo of her teacher and mentor (see page three) and images that she found in Flickr to create the characters reminiscent of Star Wars but NOT actually THE Star Wars characters.  OK?  List the various types of issues that come up with the use of these images (both based on the real actors and on Flickr images)?  Include the
Business Law and Intellectual Property Long test  use of the Star Wars actors in the student project as well as those folks and images used for the “real” version (from Flickr).  Explain your answer.  Remember to consult the Harry Potter case and Seinfeld Aptitude case, as well as the Taster’s Choice case when thinking about this situation.  20 pts 6 Assume that Mira’s movie achieves a decent size fan base.  Further assume that Jane and Susan create a fan site that includes descriptions of the characters and their own representations of the plots based on the stories and film cannons.  Also assume that they begin to create their own fanbased machinima of their versions of the plots. Based on the reading in the book and the case law (Harry Potter case, Twin Peaks case and Seinfeld Aptitude case), prepare a list of criteria that one should consider prior to creating a fan-based work.  Apply your list to this situation and indicate whether the fan-based work as described is a violation of Mira’s, Book-It’s or Warner’s rights or if fair use will apply.  Finally suggest how a fan-based work can be created without violating copyright or trademark rights.  10 pts. DUE IN CLASS WEEK TEN  REMEMBER TO LOOK AT THE WEB SITE FOR NOTES:
Photo she used as reference for the characters in the novel and game
This is the image of her Professor dressed as an Imperial Officer 2007 Photos by Bonnie Burton.